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NEW YORK – Five years ago Kenneth Chamberlain Senior accidentally triggered his medical alert device. What happened next is nothing short of a nightmare for his family.

The 68-year-old, former Marine with an array of physical and mental health issues was shot dead by a White Plains police officer.

While Chamberlain's family hoped the officer who killed their father would be criminally prosecuted, that never happened. A grand jury chose not to indict Officer Anthony Carelli. However, now five years later a civil case is moving forward and set to begin Monday, November 7.

"It's very overwhelming," Kenneth Chamberlain, Jr., Chamberlain's only son said."It's been an uphill battle since my father was murdered, but we're finally getting our day in court."

Racial slurs from officers, yelling and screams from Chamberlain and even pleas from Chamberlain to officers telling them he's okay and to go away.

Police claimed from the beginning their officers were acting in self-defense and that Chamberlain was aggressive, wielding a hatchet. A claim his family's attorneys today are not only disputing but say, in their opinion, is proven false by new evidence they received from the Westchester County Medical Examiner's office just two weeks ago.

"The day that Kenneth Chamberlain, Sr. was killed, White Plains police put out a story they were killing a violent man. In fact, after five years we've learned something far different,"said Debra Cohen, who is representing the Chamberlain family.

Cohen and Randolph McLaughlin, both attorneys from Manhattan law firm Newman & Ferrara, say discovery and depositions preparing for this civil trial has been a lengthy process. As painstaking as the process is, both say new evidence has surfaced and come to light. Cohen said the medical examiner's office found skin cells from the handle of the knife turned in as evidence by the White Plains Police Department did not match Chamberlain's DNA.

"At the end of the day what happened here is he thought he was in the middle of a battlefield and all he was trying to do was stop this army from coming in and killing him and they did just that," McLaughlin said.

The city of White Plains and its police department declined comment on the pending litigation. Officer Carelli, PIX11 learned, is still employed with the White Plains Police Department, but on disability and not on active duty.